Prologue — Mississippi River Fuel Corp. v. Federal Power Commission (No. 586)

. COPY | | | [orice Scares IKE ‘

8. INTHE

Supreme Court of the United States

On rdben Thea, 1960

F 7 a)

No, 5 $8 a)

Mississiper Raver Foren Conpora tion, Pe titloner,

vy.

Pepenan Powrn Com isston, briiNots Rowen. Come

PANY, LACLEDE GAS Company, AND Mipsorrin Gas.

Covurany. [ee sponds nts, .

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APREALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Ru PSpOND €, Coin RN

“Ar AN ©. NouN ;

in 41] North Sé@venth Street

St. lenis 1. Missouri

Mirvin Racin

S26 Pennevivanta Building

» * Washinegten 4 DP. e.

Albis WS for 1’ fificae rn’

Mossissi pp Reivwer |

Corporation

; ” (de ie tosels

. fron L. Berr .

7 North Eighth Street

St. Laotiis 1, Missouri

Deo omiber, 1960

md

-- TABLE HE CONTENTS

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TABLE OF CITATIONS

tovrr Decisions:

Bel Oil Corp. v. FPLC. 255° F. Md DAS (CLA. D. 1958),

cert. de nied, ee Ge Oe CEUOD ds ans eccmnccuss ,

Cities Servier Gas Producing Co, Vv. F.P.C.. 233 F.2d

26 (CLA, CTO, B95), verte di wed, sup FS. OD). -

I RN ge adage ORR Oye <p Hit og ha pug ap Uae peat

a ape The lode “al Ne minary Vis e ag | ws ane F. a JN

. NDC, D959), coat. dented, SOL US. 895 (1959)

PP er: Vv. Ho} vw Natural Gas Co. 320 ULS. ad, py fe

Hop Natural lias Ce, c. ew... 16 F. ed S03 (CC. A.

Gh Pe 2 tatdin st cralling a ca alareemian ee ate a alae Caine

Mi. issippl Power & Light “f o¥. Memphis Natural po

Co. 162 PL 2d O88 (CLAD, WAT), cert. dented:

“ee Te ee ere

Mississippi Rirer Fuel € orp. + F. Pr.. tt F. ad 150

e i hh SE cs cos SR Cees p aba enw a sake ekeeees

Vierisnipps River Fuel C arp. X. PPC . 202 F. 2d 899

(( x\. 4 1953) SSéeOC HERSEK ECKROE RKO HROE RSs 4 OOH HHO OMS :

i

ik ‘ "Pable of Conteats Continued:

. Han

Mis: eal. River Fuel € orp. X. EPC. G2 af dL G19

A.D.C., W957). cert, denied, 355 6 S. DOA CIID)

Phillips ‘ps Trole um, Co, Vv. Wisconsin, MMT i Me if.

Co ee ere tO a Lr een OA fe

— hg Electrical Researc h Products, 57 ¥F. aT} 639

‘alts BS 132) NAY Oe eee fee aia eae nee a

rpenar Powrr*ComMission Cases:

PLAT ps Petroleum Company, F.P.C. Opinion No. 32s,

instal September 28, 1950, animeo po oo... ln

STATUTES: : az :

Pha rsa Cis Act, no Stat. 821 (1938) as “amended,

by ULS.CL TIT ef seq.

» Settion 4(e) 2.2.2... Sn eee et Seek atek es Vee

I I Cas aes nig'a as de ae mee Whe Rae Bom la

EE a I eae ay 7, 1, Tha

* Section O(a) ere eee vite te NA aa eh in EY f.... OO

Miscenr ANEOU "Ss: ee

Seth Anmnal Report of the Peder at Power ¢ ‘ommission

Soe. cn a EERE re Sy coe ares oe gana ae “<

IN THE

Supreme Court uf the United State's

- OCTOBER Tr. KM, 1960

No. *

Mississiper RIVER Pren Corvoration, Petitioner,

v.

Fepenat. Power ComMisstos, Thiinots Powrr Com-

PANY, LACLEDE GAs COMPANY, ANB: MipSoutH Gas

Company, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT.OF COLUMBIA: CIRCUIT ;

Mississippi River Fuel Corporation prays that a

writ of certiorari issue toe review the judgment of the

United: States Court of Appeals for the District: of

Columbia Cireuit entered in the above- entitled ease on

—_ OU, 1960. ;

OPINIONS BELOW’

The opinion of the Court of Appeals (App. A.. infra,

ip. la-Il4a) is reported at 281 F, 2d 918. The order of

the Federal Power Commission, issued eo oh

1959 (R. 164-176), is reported at:21 F.P.C. 48. °

ia >

~_

J URISDICTION

The@jidgment of the Court of Appeals Was entered’

June 30,. 1960 CApp. A. infra; pp. fa-Da). A peti-

i “tion ‘for rehearing, timely filed, was denied on Septeni-

— ber "19,1960 (App. A., infra, p. la). The jurisdiction

of this Court is invoked under 28 U.S.C. 195401) and

Section 19(b) of the Natural Gas ‘Act, 15 USA.

T17r(b). | ve y 2

ne. QUESTIONS, PRESENTED ‘-

. Where an agreement between a tiatural gas com

pany subject to regulation under the Natural Gas Act

cand its utility customers provides for the filing of ne

rates upon the happening -of certain events in the

future, are the rates of the -natural’ gas company

changed ‘automatically upon the happening of. these.

events, and .without «ompliance with the notice and

filing provisions of Section 4(d) of the Aet?.° +

a May the Federal’ Power Commission, ‘in deter-

mining a. refund for a past period of time, refuse te

take into account the actial events of that period: and

thereby bestow upon certain utility customers, anid ata

pipeline company’s expense, an unwarranted wind fal

of over #2,000, OOO? .

3. Under the Natural Gas -Act, may the Federal —

Power Commission without notice or hearing order i

natural gas company to file new rate schedules retre-

actively reducing its rates for a past period ? :

aod

_ STATUTE INVOLVED

The pertinent provisions of the Natural Gis Act. 92

Stat. 821 (1938), as amendéd, 15 U.S.€. 717 ef seq. air

set forth in Appendix B, infra, pp. 16a-18a.

}

.*

s Ho ‘ |

_ STATEMENT :

This case involves an enbes of the Fe deral Power

Commission issued Jantigry 25, 1959 (RR. 164-176». di--

recting Mississippi River: Fuel Corporation. retroac-

tively to reduce rates theretofore collected: from. its

utilityeustomers for the period from November 8, 1955

to November 1, 1958, and to make refunds to suelyeus-

tomers based on that rate reduction.’

fn 1953: Méssissippi filed with the Commission an in:

creased rate for gas sold to its utility enstomers

© (R. 55-78). The’ utility customers opposed this rate

. inereases but Mississippi and the customers nego-

tiated a’settlement agreement fixing a new rate, whieh

the Commission approved on June 3, 1953 (R.92- I: 2)

12 F.P.C. 151.

At the time of the settlement agreement, and con-

timally thereafter, Mississippi was buying most of its

-¢ gas from United Gas Pipe Line Company whose rates

as il} preenny

to Mississippi were the stibject of rate proceedings then

pending> To take care of thie possibility that United *s

rates to Mississippi might be reduced ingthose. proeeed-

ings, the settlement agreement required > Mississippi

to “make wefunds and fil changes" in its settlement

rate df United was required by a final order ‘tte make

any refunds or rate reductions to Mississippi” in those

' Mississippi is a matural gas pipeline‘company which is. in effect,

4 Whelesaler of gas The tility ceuisteruers are, primarify, coi

banies Which retail te domestie, commercial and. industrial con-

sitters the gas ther buy from Missisippi.f Mississippi is regnlated

by the Federal Power Commission under th« Natural Gas Act

and the utitity companies are regulated bs Staite COMMISSIONS.

= Docket Nos. G-142 and G-2019,

“«

oes .

oe

proceedings (R. 110). Paragraph VI-of the se ttlerie ‘nt

agreement provided (R. 100):

If | United] is required * *.* in the proceedings

_in Commission, Docket “No. G-2019 to refund to

Mississippi any part of: the charges now being.

collected under bond, such portion, if any, of such

refund attributable to natural gas purchased from

United by Mississippi * * * and-resold to the utility

customers of Mississippi, unless otherwise ordere a

by the Commission, shall be refunded to such

«utility customers. * * *

.

Similarly, Paragraph VIL stated (R. 101):

If United is required * * * in the proceedings ip

Commission Docket Nos. G-1142 and G-2019, or

either of them, to make any reduction in’ the rates

to be charged or collected for natural gas sold by

United to Mississippi, then Mississippi, «unless

otherwise ordered ‘by.‘the Commission, shall file

with the Commission changes in its Rate Schedule

F-1 [settlement rate] to reduce the, rates therein.

provided so as to pass on to its utility customers the

proper amount * * * of any such rate reduction

ordered and made effective by the C omission in

: respect of United’s rates. * * *

7 Paragraphs VI and VII set forth the mechanics for

determining the amount of refund or rate reduction

(RR. 100-102). Under-Paragraph VIT the rate redue-

tion to be passed: on was to be “aitributable to reduced

costs of gas purchased | by Mississippi from United”

CR. 101).°. In dealing with certain rate structure prob-

lems, the agreement provided for variations ‘to the

extent necessary to carry out the purpose of having +

a pass on to its utility customers. only the

’ Italics supplied throusifont unless otherwise noted.

io 4

gz

* proper proportion of any such over-all reduction of. -

United’s rates’? (R. 102):

On November &, 1955; the Commission issued an

order in the United rate proceedings reducing its rate

to Mississippi. Mississippi was not-satisfied with the

_ order and sought judicial review; tnd on July 8, 1957,

the Court of Appeals remanded the case for further

proceedings. Mississippi River Fuel Corp. Vv. gf ie

252 F.2d 619 (CLALD.C., 1957), cert. de nied, 355. U.S.

WM 4.1957). On remand to the Commission, United

submitted evidence. required by the Court’s mandate,

and the Commission on September 11, 1958, entered its

final order reducing United’s. rate to.Mississippi (R.

244-256). This reduced rate was -made effective from

November 8, 1955 (the date of thé original Commission

order). to April 1, 1956, when another United rate in-

erease had become effective: (R.°234). Thus, Missis-.

sippig benefits from the reduced United rate were, as

the court below recognized (App. A.. infra, pe Ga),

‘epminated as of April 1, 1956. In its final order of

September 11, 1958, the Commissiow noted that under:

the reduced rate thus approved, “the total subject te

refund .by) Mississippi [to its customers] through .

Mareh 31, 1956, is $800,726" (OR. 258, fm. Ti.

The order reducing United's rate had the effect of

triggering Mississippi's obligation under the 1953

settlement:to pass on tothe utility customers the bene- .

fits Mississippi received from the reduced United rate.

Accordingly, Mississippi on October 20, 1958, advised

the Commission that.it proposed to-make-aYetund to

its utility. enstomers for the period from Novenlber 8,

1955 to April 1, 1956, the period during which it had

_ teceived benefits from the United rate-reduction (R.

©. 198-122). Phe refund thus proposed aggregated about: